Singh (Migration)

This matter concerned an appeal by an applicant, a citizen of India, against the cancellation of his Subclass 500 (Student) visa. The applicant initially arrived in Australia in February 2018 on a student visa as a member of the family unit of his spouse. Following the cessation of this relationship, his visa was cancelled by the Department in February 2019. Subsequently, the applicant applied for and was granted new student visas as a primary applicant, enrolling in various vocational courses.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out. This section permits visa cancellation if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a fact or circumstance that no longer exists. The Tribunal was required to determine if the applicant's initial student visa grant, based on his status as a family member, was predicated on a circumstance that had ceased to exist.

The Tribunal reasoned that the applicant's initial student visa was granted on the basis that he was a member of the family unit of his spouse, as defined by regulation 1.12(2)(a) of the Migration Regulations 1994. The evidence clearly indicated that this relationship had ceased. Therefore, the Tribunal was satisfied that the ground for cancellation under section 116(1)(a) was established, as the basis for the original visa grant no longer existed. However, this ground did not mandate cancellation. The Tribunal then considered its discretion, taking into account the applicant's subsequent enrolment as a primary student, his continuous study and completion of courses, and his assessment as a genuine student and genuine temporary entrant.

Having considered all relevant circumstances, including the applicant's compelling need to remain in Australia to complete his studies and his compliance with visa conditions, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.